Is an arbitration award which dismisses only one charge ripe for review and does the 3 year limitations period apply to a charge under 3020-a which alleges a criminal charge?

Yes and Yes. Michael P Hogan submitted an employment application to the Hauppauge Union Free School District in 2006 which in 2010 the school district alleged he failed to disclose that he had previously held a probationary teaching position with another school district and resigned after allegations were made that he used corporal punishment and he would not receive tenure.

Educations Law 3020-a prohibits the bringing of charges against a teacher which are older than 3 years. In Hogan’s case the District argued that the exception contained in 3020-a which allowed the bringing of charges older than 3 years when they sounded in a criminal charge applied since the application allegedly violated Penal Law 175.30, offering a false instrument for filing in the second degree.

The arbitrator dismissed the charge and was ready to hear the remaining two charges when the district appealed.

The Appellate Division, Second Department found that the criminal allegation exception applied and reinstated the charge. Additionally they found that even though the arbitrator’s decision did not make a finding of all pending charges the matter was ripe for review since the arbitrator dismissed the most serious charge.

Hauppauge Union Free School District v. Hogan (September 11, 2013, Decided)

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Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

Will the Court uphold an arbitrator’s imposed fine for engaging in protected 1st Amendment free speech activity?

No. Richard Santer, a teacher employed by the East Meadow Union Free School District engaged, with other teachers, in a peaceful protest while negotiations for a new contract were underway. The protest involved picketing in front of a middle school which included parking their cars in front of the school and display their picket signs in their cars. This area was also used by the middle school’s students’ parents to drop off their children for school.

None of the teachers blocked either of two curb cuts in front of the school but according to the principal the protesting teachers’ parking caused traffic to become congested creating a safety concern for students being dropped off in the middle of the street.

No school official asked the teachers to move their cars during the protest, and no child was injured.

The school district brought disciplinary charges against several teachers under 3020-a and after an arbitration Santer was fined $500. His appeal was denied in Supreme Court.

On appeal to the Appellate Division Santer prevailed. The Appellate Division found that Santer’s free speech rights were violated and by bringing him up on disciplinary charges the school district, in effect, chilled free speech rights of all teachers concerning a matter of public concern.

N.B. In a case brought to the same Appellate Division, but a different panel, concerning the same incident but with a different teacher the Court held that the arbitrator was reasonable in upholding the discipline. In that case, Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106) the teacher received a counseling memo. The Santer Court reasoned that Trupiano was not controlling since Trupiano did not raise a First Amendment claim in her petition.

Another teacher who was fined $1000 for the same incident was denied her appeal at the Supreme Court level. The Court there found that she engaged in an activity that endangered student safety. She did not appeal further. Barbara Lucia, Petitioner, against Board of Education of the East Meadow Union Free School District, Respondent. 32 Misc. 3d 1208A; 932 N.Y.S.2d 761; 2011 N.Y. Misc. LEXIS 3178; 2011 NY Slip Op 51210U (Nassau Sup.Ct., 2011)

In the Matter of Richard Santer, appellant, v Board of Education of East Meadow Union Free School District, respondent. (Index No. 1997/10), 2010-11006, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8698; 2012 NY Slip Op 8750, December 19, 2012, Decided.

Will a Court Entertain a Discovery Request in a 3020-a Proceeding Before a Final Award is Made?

No. Many times when faced with a disciplinary hearing the parties require information from each other to prepare for the case. While the Education Law provides an affirmative obligation to provide such material the guidelines for the issuance of such a discovery order from an arbitrator are not clear.

In this case the School District sought some emails from a teacher. The arbitrator refused to order the teacher to turn them over so the District went to Supreme Court to seek redress.

Justice Donald A. Greenwood ruled that a court order in such a situation was improper since the statute only allowed the court to review final arbitration determinations.

It is important in such cases to make the application on the record to preserve any issue for appeal.

In the Matter of the Application of the Jordan-Elbridge Central School District and the Board of Education thereof, Petitioners, For an Order Pursuant to Article 75 of the CPLR Vacating the Hearing Officer’s Decision, against Anonymous, a Tenured Administrator, Respondent. Sup. Ct., Onondaga County, October 16, 2012. Index No. 2012-3582.

Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided